CPLR 3211(b) provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses are without merit as a matter of law because they either do not apply under the factual circumstances of the case,or fail to state a defense. On a motion pursuant to CPLR 3211(b), the court should apply the same standard it applies to a motion to dismiss pursuant to CPLR 3211(a)(7), and the factual assertions of the defense will be accepted as true. If there is any doubt as to the availability of a defense, it should not be dismissed.
Diversified Bldg. Co., LLC v. Nader Enters., LLC, NY Slip Op 06047 (2d Dep't November 5, 2025)
